3. Doubt is entertained as to the propriety of payment of the enclosed claim for the reason that while such expenditures may be allowed from funds appropriated for Rivers and Harbors, this officer knows of no such authority for the expenditure of funds appropriated for the War Department.

The involved voucher is in the amount of $33 for professional services rendered by Dr. F. E. Kibler under contract W643 Eng 2495, dated February 4, 1942. There is attached to the voucher an itemized bill, dated March 1, 1942, showing that professional services were rendered in February, 1942, to 33 individuals at $1 per person. Article 1 of the referred-to contract provides:

The contractor is hereby employed by the Government as Physician, in connection with the physical examination of employees of this office prior to their entrance on duty, and shall perform services satisfactory to the Government, on such days, continuous or intermittent, as such services are required until June 30, 1942, for the consideration of one dollar and no cents ($1.00) for each physical examination.

The statement and certificate of award (Standard Form 1036), dated February 4, 1942, alleges that "This contract was awarded in accordance with Paragraph 9, Subdivision IV, Schedule A, Civil Service Rules." Said rules authorized the appointments without examination of "Physicians and surgeons employed on a fee basis or under contract when in the opinion of the Commission the establishment of register is impracticable." It is stated in the papers forwarded with your letter that the "services rendered were to determine the physical fitness of civilian employees for temporary duty," quoting from seventh endorsement dated August 12, 1942, from U. S. Engineer Office, Camp Carson, Colorado Springs, Colo., to the Finance Office, U. S. Army, Denver, Colo. The amount of the voucher is proposed to be charged to the appropriation, "Construction of Buildings, Utilities, and Appurtenances at Military Posts, 1942-1943."

It is inferred from the papers accompanying your letter that the authority for payment of the voucher may be found in decision of this office, B-27022, dated July 14, 1942, 22 Comp. Gen. 32, to Lt. Col. C. H. Farish, Finance Department, U. S. Army, wherein it was stated, in part, as follows:

It has been long recognized that the expense of medical treatment for civilian employees of the Government is personal to the employee and that there is no authority for the payment thereof from public funds unless provided for in the contract of employment or by statutory enactment or valid regulation. 6 Comp. Dec. 955; 8 id. 296, 11 id. 177; 16 id. 99; 3 Comp. Gen. 111; 18 id. 533.

There has been found no provision either of statute or regulation specifically authorizing payment of the cost of these examinations from public funds, and, presumably, the contracts of employment of the employees contain no such provision.

However, this office has held that where the circumstances are such that medical attention to an employee-including inoculation or vaccination to which these examinations seem more or less akin in view of their precautionary naturemay be considered as primarily for the benefit of the Government rather than the employee, the expense thereof may properly be paid from appropriated funds. 2 Comp. Dec. 347; 6 id. 447; 60 MS Comp. Dec. 1425; A-29752, December 17, 1929; A-32786, August 8, 1930; A-97344, August 26. 1938. Cf. 15 Comp. Gen. 20.

The matter involved in that decision consisted of periodic medical examinations of employees of the Chemical Warfare Service to prevent arsenic poisoning. In the instant case there is involved the question whether the Government may be charged with the cost of determining the physical eligibility of persons for Federal positions in the absence of a provision of law authorizing such payments.

There appears nothing in the appropriation proposed to be charged (as made by the act of June 30, 1941, 55 Stat. 375, and as supplemental and extended to June 30, 1943, by the First Supplemental National Defense Appropriation Act, 1942, approved August 25, 1941, 55 Stat. 670), making it available for the cost of medical examination of applicants for Federal positions to determine their physical fitness. Neither does there appear to be any such authority in any other statute or appropriation act. Compare terms of the appropriation provided for under the heading, "Medical Department, Army, Medical and Hospital Departments," making it available "for the pay of civilian physicians employed to examine physically applicants for enlistment and enlisted men and to render other professional services from time. to time," quoting from the act of June 30, 1941, 55 Stat. 379.

The following is quoted from Civil Service Commission Departmental Circular 240, dated October 24, 1940:

Existing authorization to act as representatives of the Commission in ordering physical examinations by full-time Federal medical officers is hereby withdrawn from nominating and appointing officers as of October 31, 1940. Appointees heretofore required by the Civil Service Commission to be physically examined by Federal medical officers (see Items 1 and 2 of Attachment 1 to Departmental Circular 227) are still required to be so examined, but such examinations are to be performed, as a general rule, by Federal part-time and designated fee-basis medical officers at the expense of the appointee. Departments and establishments with their own medical facilities may elect to perform such physical examinations for their own appointees and to relieve their own appointees of this expense, provided that the expense is not transferred to the Civil Service Commission. The general procedure, however, will be for nominating and appointing officers to refer those appointees whose examination by Federal medical officers is required by the Commission to Federal part-time or designated fee-basis medical officers for execution of the required medical certificates at the expense of the individual appointees.

Unless provided for by statute or in an appropriation act, the cost of medical examinations to determine physical eligibility or fitness for appointment to civilian Federal positions is required to be regarded as a personal expense chargeable to the applicants for positions and may not be charged to the Government. See the authority contained in the appropriation provided for the Civil Service Commission "for reimbursement of the Veterans' Administration for services rendered the Commission in connection with physical examinations of applicants for and the employees in the Federal classified service," quoting from the act of June 27, 1942, Public Law 630, 56 Stat. 396.

I find no authority in the Engineer Office of the War Department to enter into a contract with Dr. Kibler-such as was done h

render professional services as a physician solely "in connection with the physical examination of employees of this office prior to their entrance on duty" (quoting from the contract). There is nothing in the civil service rule pursuant to which it is alleged this contract was entered into which purports to obligate appropriated funds for the employment by contract or otherwise of a physician on a fee-basis for which no provision has been made by law.

Accordingly, payment on the voucher is not authorized, which voucher will be retained in this office.

(B-28756)

LEAVES OF ABSENCE-FORFEITURE UPON TRANSFER FROM PERMANENT TO TEMPORARY POSITIONS; PAYMENT FOR LEAVE CONCURRENTLY WITH MILITARY SERVICE

Since section 6 of the Annual Leave Regulations does not provide for the transfer of leave credit to or from a temporary position, annual leave accrued in a permanent position is lost upon transfer to a temporary one, and, therefore, an employee who enters the military service while serving in a temporary position to which he transferred without break in service from a permanent position is not entitled under the act of August 1, 1941, as amended, to be paid, concurrently with military service, for annual leave earned during service in the permanent position.

Comptroller General Warren to the Secretary of Commerce, September 18, 1942: There has been considered the matter presented by the Chairman, Civil Aeronautics Board, in his letter of September 5, 1942, as follows: The Civil Aeronautics Board has before it the question of whether it possesses the authority to pay an employee his accrued annual leave under the following circumstances:

An employee was promoted from a permanent position in the Classified Civil Service to an excepted position under authority of Schedule A, Section XXXIV, Paragraph 4, of the Civil Service Rules and Section 202(b) of the Civil Aeronautics Act of 1938. The appointment in the excepted position is limited in time not to exceed six months. With no break in service, this employee has entered the military service and requests that he be granted his accrued annual leave.

The Annual Leave Regulations for Government Employees issued by Executive Order No. 8384 on March 29, 1940, define "permanent employees" under section I(b) as "those appointed without limitation as to length of service for definite periods in excess of six months," and "temporary employees" under (c) of that same section as "those appointed for definite periods of time not exceeding six months."

Section 6 of the above regulations provides:

"An employee transferred or reappointed without break in service from one permanent, emergency, or indefinite position to another permanent, èmergency, or indefinite position with the same or a different governmental agency shall at the time of his transfer or reappointment be credited with such accumulated and current accrued leave as may be due him, or charged with any unaccrued leave which may have been advanced, provided such latter position is also within the purview of the said act of March 15, 1936. An employee transferred or appointed without break in service from one permanent, emergency, or indefinite position within the purview of the said act of March 15, 1936, to another position or employment in the Federal Service which is not within the purview of that act, shall be credited with all leave accumulated and accrued on the date of such transfer or appointment at such time as he may be subsequently retransferred or reappointed to a position within the purview of that act, provided such subsequent retransfer or reappointment is without break in service. 'Break in service' means separation from the Federal service for a period of one or more work days."

On several occasions you have interpreted the predecessor section to the above section 6 as giving no authority for the transfer of accrued annual leave from a permanent position to a temporary position. See 16 C. G. 403; 17 id. 830; and 18 id. 317. The language of the predecessor section 6 reads:

"An employee transferred or reappointed without break in service from one permanent position to another permanent position within the same or a different governmental agency shall at the time of the transfer be credited with such accumulated and current accrued leave as may be due him, or charged with any unaccrued leave which may have been advanced. 'Break in service' means separation from the service for a period of one or more work days."

The existing section 6 of the Leave Regulations makes possible the saving of annual leave on credit for an employee accrued in a position within the purview of the annual leave act when there is a transfer back to a position within the act. However, may this section be interpreted as providing for transfer of leave from a permanent position to a temporary position, both of which positions are within the purview of the annual leave act?

Your decision on this question is requested.

In decision of September 11, 1942, B-28489, a copy of which is enclosed, there was considered, among others, a question similar to that presented in the above-quoted letter. So far as here pertinent, it was stated in that decision with relation to administrative employees of the Work Projects Administration who were transferred to projects and returned to temporary administrative positions of 60 days duration, as follows:

* If the employees involved here had been retransferred or reappointed without break in service to administrative positions other than temporary, within the purview of the leave acts, they would have been entitled to have had the leave to their credit at the time they were transferred to the project recredited to them when they were retransferred or reappointed without break in service to administrative positions. See second sentence of section 6 of the annual leave regulations (Executive order No. 8384 dated arch 29, 1940), and compare 20 Comp. Gen. 35. However, as the tenure of the administrative positions to which they were retransferred or reappointed after service on the WPA project was expressly limited to 60 days-less than 6 months-they were retransferred or reappointed to "temporary" positions as that term is defined in section 1 (c) of the annual leave regulations and they thereby lost their right to have their leave recredited to them for the reason that section 6 of the annual leave regulations, quoted in your letter, does not provide for transfer or retransfer of leave credit to or from a "temporary" position. See 16 Comp. Gen. 403; 17 id. 414; id. 830; 18 id. 317. Cf. 18 Comp. Gen. 599; 19 id. 30. See, also, 19 Comp. Gen. 14; id. 366, which have been rendered inoperative in the instant cases by reason of a subsequent change in section 6 of the annual leave regulations.

In the case of Major Douglass, it is not clear just when he entered the military service but if he entered said service while he was serving under the temporary appointment of 60 days, he would have no right under the act of August 1, 1941, as amended by the act of April 7, 1942, Public Law 517, to be paid for the annual leave which he lost at the time he was reappointed to the temporary position.

Similarly here, if the employee mentioned in the second paragraph of the quoted letter, supra, entered the military service while he was serving in a temporary position "limited in time not to exceed 6 months", he could not be paid under the act of August 1, 1941, as amended by the act of April 7, 1942, Public Law 517, 56 Stat. 200, for the annual leave earned during service in his permanent position but which was lost to him when he was transferred and appointed to the temporary position held at the time he entered the military service. Thus, the question in the last sentence of the penultimate paragraph of the said letter must be and is answered in the negative.

(B-26321)

LOSSES OF PERSONAL PROPERTY BY NAVY PERSONNEL IN MARINE DISASTERS CLOTHING, ETC., FURNISHED SURVIVORS OF TORPEDOED VESSEL

The act of October 6, 1917, providing for the reimbursement of Navy personnel for certain losses of personal property in marine disasters, etc., does not extend to a case where Navy enlisted men furnished their personal clothing, blankets, etc., to survivors of a torpedoed vessel.

Assistant Comptroller General Elliott to the Secretary of the Navy, September 19, 1942:

There has been considered your letter of May 27, 1942, with enclosures, as follows:

There are forwarded herewith for your consideration the claims of fifteen enlisted men for reimbursement for certain items of clothing and other personal property furnished to the survivors of the U. S. S. Reuben James on or about October 30-31, 1941, upon the occasion of the torpedoing of that vessel during a National Emergency declared by the President to exist.

The Act approved October 6, 1917 (40 Stat. 389; 34 U. S. C. 981), provides, in part, as follows:

"The Paymaster General of the Navy is authorized and directed to reimburse such officers, enlisted men, and others in the naval service of the United States as may have suffered, or may hereafter suffer, loss or destruction of or damage to their personal property and effects in the naval service due to the operations of war or by shipwreck or other marine disaster when such loss, destruction, or damage was without fault or negligence on the part of the claimant, or where the private property so lost, destroyed, or damaged was shipped on board an unseaworthy vessel by order of an officer authorized to give such order or direct such shipment, or where it appears that the loss, destruction, or damage of or to the private property of the claimant was in consequence of his having given his attention to the saving of the lives of others * *

The right of the claimants to reimbursement appears to be dependent on whether or not, in turning over their personal property to the survivors of the Reuben James, they suffered a loss within the meaning of the Act of October 6, 1917, supra, for which reimbursement is authorized, or whether they made an outright gift of such personal property for which reimbursement is not authorized under the cited act.

That Congress intended reimbursement should be made in cases of this nature seems apparent from the language employed in the Act of October 6, 1917, which in plain terms contemplates reimbursement of any person in the naval service for any "loss" of personal effects suffered by him as a result of "operations of war" or in consequence of his "having given his attention to the saving of the lives of others".

The right of claimants to reimbursement also appears to be established by various decisions of the Comptroller of the Treasury. For example, in 2 Comp. Dec. 347, it was held that the master of a lighthouse tender could be reimbursed for the amount he had expended in connection with the sickness and burial of one of the crew. The Comptroller of the Treasury has also held that an officer was entitled to reimbursement for subsistence purchased for certain recruits while in a travel status and for whom the Government failed to provide necessary rations. (Comp. Dec. April 24, 1901.)

The Comptroller of the Treasury has also held (8 Comp. Dec. 43) that an officer or employee who makes an expenditure from his own funds for a necessary expense of the Government is entitled to reimbursement therefor. The general principle prescribed in this decision is stated thusly:

"Wherever an officer in the performance of his official duty has found it necessary, in order to properly perform his duty, to advance his private funds, such an advance has been regarded by this office, not as a voluntary and unauthorized advancement of funds creating no liability on the part of the Government, but as an advancement rendered necessary by the exigencies of a situation for the existence of which the Government was responsible, and for which the officer was entitled to reimbursement of the amount advanced."